Washington v. Washington, 32980.

• Decision Date: 26 October 2007
• Docket Number: No. 32980.,32980.
• Citation: 654 S.E.2d 110
• Parties: Heather C. WASHINGTON, Petitioner Below, Appellee v. Charles D. WASHINGTON, Respondent Below, Appellant.
• Court: West Virginia Supreme Court

654 S.E.2d 110

Heather C. WASHINGTON, Petitioner Below, Appellee v. Charles D. WASHINGTON, Respondent Below, Appellant.

No. 32980.

Supreme Court of Appeals of West Virginia.

Submitted September 19, 2007.

Decided October 26, 2007.

Syllabus by the Court

1. "`In reviewing a final order entered by a circuit judge upon a review of, or upon a refusal to review, a final order of a family court judge, we review the findings of fact made by the family court judge under the clearly erroneous standard, and the application of law to the facts under an abuse of discretion standard. We review questions of law de novo.' Syllabus, Carr v. Hancock, 216 W.Va. 474, 607 S.E.2d 803 (2004)." Syllabus Point 1, Staton v. Staton, 218 W.Va. 201, 624 S.E.2d 548 (2005).

2. "`Where the Legislature has prescribed limitations on the right to appeal, such limitations are exclusive, and cannot be enlarged by the court.' State v. De Spain, 139 W.Va. 854, [857,] 81 S.E.2d 914, 916 (1954)." Syllabus Point 1, West Virginia Department of Energy v. Hobet Mining & Construction Co., 178 W.Va. 262, 358 S.E.2d 823 (1987).

Pamela R. Folickman, Esq., Holly Turkett, Esq., Law Offices of Pamela R. Folickman, PLLC, Fairmont, for Appellee.

Michael F. Niggemyer, Esq., White Hall, for Appellant.

PER CURIAM:

The appellant, Charles D. Washington, husband of appellee, Heather C. Washington, appeals the Circuit Court of Harrison County's March 17, 2005, dismissal of his Petition for Appeal as untimely filed and asks this Court to remand with directions to correct the record and deem his appeal timely filed. Based upon the parties' briefs and arguments in this proceeding, as well as the relevant statutory and case law, we are of the opinion that the circuit court did not commit reversible error and accordingly, affirm the decision below.

I. FACTUAL AND PROCEDURAL HISTORY

The appellant, Charles D. Washington, and the appellee, Heather C. Washington, were married on October 22, 1994, in Harrison County, West Virginia, where they maintained their marital home. The Washingtons have two minor children. They also owned and operated several small businesses in Harrison County, including a bail bonding agency, a car detailing shop, and residential rental properties.

On May 22, 2003, Ms. Washington filed a complaint with the Family Court of Harrison County to initiate divorce proceedings. At the time of this filing, an active domestic violence protective order (DVPO) was in effect against Mr. Washington. The family court consolidated the DVPO case (03-DV-269) into the divorce proceedings.

In the family court, Ms. Washington was represented by counsel while Mr. Washington elected to appear pro se. Mr. Washington did not file an answer to the complaint, often missed court-imposed deadlines, and failed to respond to any discovery requests. Mr. Washington did, however, submit to the family court a proposal for the equitable division of marital assets and a parent education certificate.

On September 16, 2004, the family court held a hearing on all issues before the court. After considering the evidence, the family court judge issued an October 4, 2004, letter to both parties which included his findings of fact and conclusions of law on the issues of alimony, a permanent domestic relations protective order, distribution of the marital assets, child custody and support, sanctions against Mr. Washington for contempt for refusal to answer discovery requests, and a partial award of Ms. Washington's attorney's fees. The letter directed Ms. Washington's attorney to draft the final divorce decree. Both parties received the October 4, 2004, letter, however, it appears that the letter was not filed in the official court record.

The family court judge entered the Final Divorce Order on December 6, 2004, incorporating by reference the October 4, 2004, letter. On January 3, 2005, just two days prior to the lapse of the thirty-day appeal period, Mr. Washington retained Mr. Michael F. Niggemyer, Esq., to represent him in appealing the Final Divorce Order to the Circuit Court of Harrison County. On January 4, 2005, Mr. Niggemyer found that the October 4, 2004, letter had not been filed in the court record and promptly notified opposing counsel. On January 5, 2005, the October 4, 2004, letter was then filed in the court record. On January 6, 2005, Mr. Niggemyer filed an appeal on Mr. Washington's behalf with the circuit court.

The circuit court initially granted Mr. Washington's appeal and set a hearing for February 15, 2005. At this hearing, the circuit judge raised sua sponte the issue of the timeliness of the appeal, as the appeal was filed thirty-one days after the date of entry of the divorce decree, one day after the thirty-day appeal deadline. After the parties addressed the circuit court concerning the timeliness issue and provided follow-up correspondence, the circuit court, by order dated March 17, 2005, dismissed the appeal as untimely. This appeal followed.¹

II. STANDARD OF REVIEW

This Court has held that: "`In reviewing a final order entered by a circuit judge upon a review of, or upon a refusal to review, a final order of a family court judge, we review the findings of fact made by the family court judge under the clearly erroneous standard, and the application of law to the facts under an abuse of discretion standard. We review questions of law de novo.' Syllabus, Carr v. Hancock, 216 W.Va. 474, 607 S.E.2d 803 (2004)." Syllabus Point 1, Staton v. Staton, 218 W.Va. 201, 624 S.E.2d 548 (2005). See W.Va.Code § 51-2A-15(b) (2001). See also, Syllabus Point 1, Chrystal R.M. v. Charlie A.L., 194 W.Va. 138, 459 S.E.2d 415 (1995) ("Where the issue on an appeal from the circuit court is clearly a question of law or involving an interpretation of a statute, we apply a de novo standard of review."). With these standards in mind, we now consider the issues presented in this case.

III. DISCUSSION

Mr. Washington asks this Court to hold that a Final Divorce Order that references and adopts documents not otherwise in the official court record constitutes an "incomplete" record and does not ripen the case for appeal. According to Mr. Washington, only when the record is corrected to include the referenced and adopted documents should the record be deemed complete and the case ripe for appeal.

Mr. Washington argues that while no case from this Court is directly on point with regard to his argument, this result may be inferred from existing case law indicating that litigants must create a complete record and that family courts have an independent duty to create a complete record. In support of this argument, Mr. Washington relies upon Carr v. Hancock, 216 W.Va. 474, 607 S.E.2d 803 (2004), wherein this Court stated that "parties have a duty to create a complete record." Mr. Washington also cites John P.W. ex rel. Adam W. v. Dawn D.O., 214 W.Va. 702, 591 S.E.2d 260 (2003), to support his claim that the family court has an independent duty to ensure the completeness of the record.

Conversely, Ms. Washington argues that Mr. Washington's reliance upon the Carr and John P.W. cases is misplaced. Ms. Washington contends that in Carr, this Court held that the failure of the parties to create a complete record did not constitute reversible error. Moreover, according to Ms. Washington, in John P. W., this Court reversed a domestic violence protective order and directed the family court to state its factual findings sufficiently to facilitate efficient appellate review. Thus, Ms. Washington contends that the John P.W. case is completely inapplicable to a divorce decree. Ms. Washington also maintains that the failure to place the October 4, 2004, letter from the family court judge in the official court record did not impair Mr. Washington's ability to file a timely appeal in this case. We agree.

Having thoroughly reviewed the record before us, we believe that one of the most critical facts to consider throughout our review is that Mr. Washington was in actual possession of a copy of the October 4, 2004, letter during the entire thirty-day appeal period. A copy of the letter was provided to him as soon as it was written and he does not argue that he did not have the letter in his possession during this time period. Another critical fact is that Mr. Washington waited until just two days prior to the lapse of the thirty-day appeal period, on January 3, 2005, to hire Mr. Niggemyer to represent him. On January 6, 2005, Mr. Niggemyer filed an appeal on Mr. Washington's behalf with the circuit court. Unfortunately, however, he failed to comply with West Virginia Rule of Practice and Procedure for Family Court Rule 28(a), which clearly provides that:

Time for petition. — A party aggrieved by a final order of a family court may file a petition for appeal to the circuit court no later than thirty days after the family court final order was entered in the circuit clerk's office. If a motion for reconsideration has been filed within the time period to file an appeal, the time period for filing an appeal is suspended during the pendency of the motion for reconsideration.

While we do recognize that the October 4, 2004, letter should have been placed in the court record at the time it was written and presented to both parties, given the specific facts of this case, we find that any delay in filing the letter in the official court record was a harmless error at best. Harmless error, as described by Rule 61 of the West Virginia Rules of Civil Procedure, contemplates that:

no error or defect in any ruling ... or in anything done ... by the court ... is ground [sic] for granting a new trial or for setting aside a verdict or for vacating, modifying or otherwise disturbing a judgment or order, unless refusal to take such action appears to the court inconsistent with substantial justice. The court at every stage of the proceeding must disregard any error or defect in the proceeding which does not affect the...